[Copyrighted Material Omitted]
Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, AND CASSEL, JJ.
[290 Neb. 1022] Connolly, J.
The State charged Joshua J. McIntyre with operating a motor vehicle under the influence of alcohol. The operative information further alleged either that McIntyre did so with a breath alcohol content of at least .15 of 1 gram by weight of alcohol per 210 liters of his breath or that he refused to submit to a chemical test of his breath. Witnesses for the State testified that McIntyre intentionally withheld air from the testing device, resulting in a sample size that the device labeled " Deficient." Nevertheless, the device reported that McIntyre's breath alcohol content was .218. The jury convicted McIntyre of operating a motor vehicle under the influence of alcohol and further found that his breath alcohol content was .15 or greater. On appeal, McIntyre argues that the results of the chemical test are inadmissible because the testing device [290 Neb. 1023] registered a " Deficient Sample." We conclude that evidence of a chemical breath test that records a deficient sample is admissible if the State lays sufficient foundation.
On April 10, 2013, McIntyre went to a bar with two coworkers. He arrived at
10:15 or 10:30 p.m. and left at about 2 a.m. on April 11. In less than 4 hours, McIntyre testified that he drank two beers, four or five mixed drinks, and about two shots of some type of liqueur. Although he knew that he was " under the influence of alcohol," McIntyre volunteered to drive his friend's car because his companions seemed even more intoxicated.
Sara Genoways, a Lincoln police officer, was on patrol during the early morning of April 11, 2013. Genoways was driving on Interstate 180 at 2:32 a.m. when she saw a red Mazda traveling northbound. Genoways followed the Mazda and saw it weave between lane lines and vacillate between 50 and 75 miles per hour in a 60-mile-per-hour zone.
Genoways stopped the Mazda and asked the driver, McIntyre, for his personal identification, vehicle registration, and insurance. Genoways said that McIntyre had " difficulty retrieving his license" and " was fumbling with his paperwork." Such " dexterity problems," Genoways testified, indicate impairment. In addition, Genoways noticed that McIntyre smelled strongly of alcohol, his eyes were " watery and bloodshot," his eyelids were " droopy," and he spoke with a " pronounced slur."
McIntyre agreed to perform field sobriety tests. Genoways administered the horizontal gaze nystagmus test, and McIntyre showed all six signs of impairment. Because of bad weather, Genoways did not administer any other standardized test.
Believing that McIntyre was intoxicated, Genoways arrested him and took him to a testing center. She interviewed McIntyre, and he admitted that he was under the influence. At trial, McIntyre testified that he " started to really feel it" at the testing center and was " pretty drunk."
[290 Neb. 1024] After McIntyre's waiting period ended, Genoways prepared him to take a chemical test of his breath on a DataMaster, a device that uses the infrared absorption method to measure alcohol content. Genoways told McIntyre to " take a deep breath [and] blow long and consistently into the machine" until he was " completely out of air." He began the test, and the device started to make a constant tone, but then began beeping. Genoways explained that the device emits " short little beeps" if " somebody is not blowing" and " make[s] a long steady tone" if " somebody is blowing sufficiently." According to Genoways, McIntyre " was puffing out his cheeks and acting like he was blowing in the machine" without really doing so. Genoways believed that McIntyre understood her instructions and knew that he was not blowing hard enough.
McIntyre eventually exhausted the DataMaster's " two-minute window," and the device " time[d] out." After the test ended, the machine produced a " printout" stating " DEFICIENT SAMPLE, INCOMPLETE TEST." Nevertheless, the printout recorded a breath alcohol content of .218 and stated that the " VALUE PRINTED WAS HIGHEST OBTAINED." The printout includes a graph of the flow of air into the machine and the alcohol content of that air. The Nebraska Department of Health and Human Services' regulations provide a checklist to be completed by the officer administering the chemical test. Because the sample was deficient, Genoways wrote " Refused" in the field for McIntyre's breath alcohol content in the DataMaster checklist.
McIntyre testified that he misunderstood Genoways' instructions. He said that Genoways told him to " blow until I heard a flat line." So, he blew until he " heard the flat line" and then stopped. McIntyre testified that he tried to comply and denied that he was " just puffing [his] cheeks out." But McIntyre admitted that
he knew that " .15 is a more offense [sic] than .08."
Todd Kocian was the officer responsible for maintaining the machine into which McIntyre blew. Kocian became a maintenance officer for the Lincoln Police Department's breath testing devices in 2009 and attended a 2-day class on the [290 Neb. 1025] DataMaster in 2012. Kocian testified that on March 19 and April 25, 2013, he performed maintenance checks on the device McIntyre used, and that the machine worked correctly on both occasions. Based on the maintenance records, Kocian opined that it was in working order on April 11.
Over McIntyre's objection, Kocian also testified about the accuracy of a test with a deficient sample. Kocian explained that a DataMaster's measurement of blood or breath alcohol content eventually " plateau[s]" once the subject provides " deep lung air" that is " consistent with the blood." The device deems a sample deficient if the measurement of breath alcohol never plateaued. But Kocian stated that a deficient sample could still yield a " scientifically accurate" result. He analogized:
[I]f we had a large hill and I was going to have somebody measure the distance to the top of the hill, and I gave you some sort of measuring device, [and] I started you up the hill and never got to the top of the hill and stopped at some point, I don't know how tall the hill is, but I know how far you got up that hill.
That is, Kocian testified that .218 was McIntyre's minimum, but not maximum, breath alcohol content.
The State filed an information alleging that McIntyre operated a motor vehicle while under the influence of alcohol or when he had a breath alcohol concentration of .08 or more. The State further alleged that McIntyre had a concentration of .15 or more and that he had two prior convictions for driving under the influence.
Before trial, the State orally moved for leave to amend the information. McIntyre did not object, and the court sustained the State's motion. At the same hearing, the State amended the original information by interlineation. The amended information adds--as an alternative to the allegation that his breath alcohol content was at least .15--an allegation that McIntyre refused to submit to a chemical test. McIntyre told the court that he had a chance to review the amended information. [290 Neb. 1026] After accepting McIntyre's not guilty plea to the amended information, the court asked if " there is anything else we need to take up with respect to the Amended Information." McIntyre's attorney said that there was not. McIntyre did not move to quash the amended information.
McIntyre moved in limine to prohibit references " to any read out or result from the formal breath test during which the State claims that [McIntyre] failed to provide sufficient breath sample or refused to submit to a formal breath test." McIntyre argued that such evidence was irrelevant or, ...